Commission allegedly violates Brown Act

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Commissioner and city attorney disagree about who is responsible for informing commissioners procedures during meeting.

By Jonathan Friedman/Staff Writer

City Attorney Christi Hogin said the Planning Commission violated the Brown Act at least twice with its actions at its Dec. 1 meeting. Although Commission Chair Robert Adler is now attempting to cure the situation, he said Deputy City Attorney Gregg Kovacevich, who was at the meeting, should have said something.

During the public comment portion of the Dec. 1 meeting, the commission was approached by music producer Lou Adler (not related to Robert Adler) and several of his representatives and neighbors about a request to hear an appeal of a permit for a home that was being built next door to him. They said the planning director at that time had not made proper calculations when he had issued the planning approval to the property owner, Bill Chadwick, more than two years ago. The commission is allowed to listen to comments during the public comment portion of a meeting, but cannot take action on an item if it is not on the agenda. However, the commission asked several clarifying questions about the item and eventually voted to hear the appeal on a future agenda.

“It was an unfortunate incident where an interesting thing came up during citizen comments,” Hogin said. “Then everybody kind of got caught up in the discussion.”

Hogin said what the commission should have done is to place an item on a future agenda to determine whether the item could be appealed. That way, people who might want to speak on whether this type of appeal should be heard could come to the meeting. Pepperdine University Law Professor Douglas Kmiec, who was at the meeting, disagrees with that logic. “That would so paralyze city government, you would have to have meetings to set up meetings,” he said.

Kmiec, who lived on the property in question and is friends with Lou Adler, said had the commission interacted with the public speakers on the item, then they would have been violating the act. He said if they had voted on something that would determine somebody’s rights and liabilities that, too, would have been a violation. But they did neither.

Commissioner Adler said if what Hogin said were true, Kovacevich should have told the commission.

“Had the assistant city attorney been more proactive and given some active guidance, this probably would not have happened,” Adler said. “But I suspect since this has never been done before, this was a learning experience for all of us. Unfortunately, the assistant city attorney was learning at the same time.”

But Hogin said it was not Kovacevich’s responsibility to do that. She said the commissioners should know when a Brown Act violation is being committed since they have received training.

“You have five adults (only four were actually at the meeting), all who have been trained in the Brown Act,” Hogin said. “At some point it’s there responsibility to know what they can’t do.”

Adler looked to the fact that Hogin often interrupts City Council meetings with legal advice on Brown Act issues as proof that it is the city attorney’s job to do that. He questioned what the point of having an attorney at meetings is if they are not supposed to give advice on such issues.

“If this is nothing more than an issue of adulthood, perhaps the city attorney should stay away from a few City Council meetings and see what happens,” he said. “I don’t think anybody wants that to happen, and for good reason.”

An item has already been placed on the Dec. 15 commission agenda to rescind the action the commission took on Dec. 1. Hogin said after the item is rescinded, the violation would be cured. It could then set an agenda item at which it would decide whether to hear the appeal at a meeting in the future.

There has been speculation the commission may have known more about the item than it should have for a public-comment item. Shortly after the meeting, Lester Tobias, the architect on Chadwick’s project, fired off an angry letter to Hogin.

“The attack was too well coordinated to have been planned without a process being laid out for [Lou] Adler and [Drew] Purvis (Adler’s expediter) to follow,” he wrote. “It was apparent that at least two of the commissioners had a hand in the strategy.”

Tobias further wrote the commission appeared to be too well versed in the conflict and what decision it should make. The vacationing Tobias could not be reached for comment. Alan Block, attorney for Chadwick, said he does not necessarily suspect something occurred, but he did find the situation odd.

“It certainly sounded like they were very prepared to discuss this issue, probably more prepared than I was,” Block said.

Block has issued an appeal to the City Council that the commission’s action had violated the Brown Act, on the same grounds that Hogin said they did. But he said he would withdraw it if the violation were cured on Dec. 15.

The commissioners had received a large packet of information from Lou Adler’s attorney, Edward Burg, before the Dec. 1 meeting. But all insist they had not planned for anything.

“Of course we were familiar with it,” Commission Vice Chair Deirdre Roney said. “We were all sent big fat packets of information. And of course they [Lou Adler and his people] are going to go before the commission eventually. So we knew they were coming, but not when. And with Drew Purvis as his expeditor, it’ not surprising they were prepared for the meeting. So I can’t say I was entirely surprised. I just don’t see it as being that mysterious.”

Purvis served as planning director for the City of Malibu until March of this year.